BASAVARAJ v. THE STATE OF KARNATAKA

HIGH COURT OF KARNATAKA KALABURAGI BENCH – 585 107 - 2 - NC: 2025:KHC-K:5780 CRL.RP No. 200153 of 2024 HC-KAR …RESPONDENT (BY SRI.SUBHASH MALLAPUR, SPL.PP) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 (1) OF CR.P.C. (OLD) UNDER SECTION 442 READ WITH 438 OF BNSS (NEW), BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO ADMIT, CALL FOR RECORD FOR RECORDS. SET ASIDE THE ORDER DATED 17.09.2024 PASSED BY HONOURABLE PRL. SESSIONS JUDGE AND SPECIAL JUDGE, AT BIDAR IN SPECIAL CASE NO.67/2015 AND THEREBY ALLOW THE DISCHARGE APPLICATION FILED BY THE PETITIONER UNDER SECTION 227 OF CRIMINAL PROCEDURE CODE, IN THE INTEREST OF JUSTICE. THIS PETITION HAVING BEEN HEARD AND RESERVED ON 08.04.2025 AT KALABURAGI BENCH AND COMING ON FOR PRONOUNCEMENT OF ORDER, BEFORE THE PRINCIPAL BENCH AT BENGALURU, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE S RACHAIAH - 3 - NC: 2025:KHC-K:5780 CRL.RP No. 200153 of 2024 HC-KAR CAV ORDER (PER: HON'BLE MR. JUSTICE S RACHAIAH)

1. This criminal revision petition is filed by the petitioner seeking to set aside the order dated 17.09.2024 passed in Spl.C.No.67/2015 by the Prl. Sessions Judge and Special Judge for the offences punishable under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 (for brevity, ‘P.C., Act’). Factual matrix of the case:

2. The petitioner was appointed as the CDPO on 10.08.1992 and served in that capacity in Bhalki, Humnabad, Basavakalyan, Gulbarga Rural and Bidar. Thereafter, he was promoted as a Programming Officer. When he was working in the office of the Deputy Director, Women and Child Development Department, Mailur, Bidar, a raid was conducted at his house situated at Tripurant Area, Basavakalyan and also at his farm house. The Authorities have found the properties and resources worth of Rs.88,16,796/-. After deducting the expenditure, they came to know that the petitioner had disproportionate - 4 - NC: 2025:KHC-K:5780 CRL.RP No. 200153 of 2024 HC-KAR assets worth of Rs.74,07,192/-, which is disproportionate to his known source of income i.e., to the extent of

151.93%, during the check period commencing from

10.08.1992 to 21.07.2011. Therefore, a case Cr.No.09/2011 came to be registered against him for the aforesaid offences. After completion of the investigation, they submitted the charge sheet. The application for discharge was filed by the petitioner and the same came to be rejected on 17.09.2024. Hence, this revision petition is filed seeking to set aside the said order.

3. Heard Sri. Sanjay A Patil, learned counsel for the petitioner and Sri. Subhash Mallapur, learned Special Public Prosecutor for the respondent – Lokayukta.

4. It is the submission of learned counsel for the petitioner that the Trial Court has failed to consider the fact that the Lokayukta police have not complied with the provisions of Section 17 of the P.C. Act and also the guidelines issued by the Hon'ble Supreme Court in the case of Satish S Vs. Karnataka Lokayukta Police Inspector, Davanagere in W.P.No.22483/2023. - 5 - NC: 2025:KHC-K:5780 CRL.RP No. 200153 of 2024 HC-KAR

5. It is further submitted that the petitioner had submitted his explanation in respect of the alleged disproportionate assets to the Authority. However, the same has not been considered properly. Though, the explanation offered is the part of the charge sheet, the materials produced along with the charge sheet by the accused has not been considered properly. Resultantly, the charge sheet has been filed which is required to be quashed and the petitioner may be discharged. Having said thus, learned counsel for the petitioner prays to allow the petition.

6. Per contra, learned Special Prosecutor for the respondent – Lokayukta vehemently submitted that the question of challenging the validity of sanction is a matter of trial and the same will be decided in the trial itself.

7. It is further submitted that, even though the explanation offered by the petitioner has not been considered by the Trial Court, the said evaluation is in accordance with law. Therefore, there is no infirmity in the said order.

8. It is further submitted that, it is well settled principle of law that, at the time of considering the discharge - 6 - NC: 2025:KHC-K:5780 CRL.RP No. 200153 of 2024 HC-KAR application or framing of charge, the Courts are required to consider the materials brought by the prosecution not the defence set up by the accused. It is also a well settled principle of law that, the Court shall assume that the materials brought by the prosecution are true and there is a prima facie case made out by the prosecution to frame the charge. Such being the fact, the grounds urged by the petitioner that the explanation of the accused was not considered by the Trial Court cannot be sustained. Moreover, the Trial Court has rightly rejected the petition for discharge. Hence, interference with the said findings is not proper and the criminal revision petition deserves to be dismissed.

9. Having heard learned counsel for the respective parties and also perused the findings of the Trial Court, it appears from the record that the petitioner had urged mainly on the three grounds i.e., Section 17 of the P.C. Act has not been complied with and the explanation offered by the accused has not been considered by the Trial Court while appreciating the application discharge and also preliminary enquiry has not been done - 7 - NC: 2025:KHC-K:5780 CRL.RP No. 200153 of 2024 HC-KAR before registering the case. Before adverting to the facts of the case, it is relevant to refer the proposition of law on the point of law.

10. In this context, it is necessary to refer the judgment of the Hon'ble Supreme Court in the case of DIRECTOR, CENTRAL BEREAU OF INVESTIGATION v. ASHOK KUMAR ASWAL1 held that, “15. All the above apart, time and again, this Court has laid down the validity of a sanction order, if one exists, has to be tested on the touchstone of the prejudice to the accused which is essentially a question of fact and therefore, should be left to be determined in the course of the trial and not in the exercise of jurisdiction either under Section 482 of the Code of Criminal Procedure, 1973 or in a proceeding under Articles 226/227 of the Constitution.” (emphasis supplied)

11. On careful reading of the dictum of the Hon'ble Supreme Court, it makes clear that, the validity of sanction order is 1 (2015) 16 SCC 163 - 8 - NC: 2025:KHC-K:5780 CRL.RP No. 200153 of 2024 HC-KAR a question of fact. The same should be left to be determined in the course of trial.

12. It is also necessary to refer the judgment of the Hon'ble Supreme Court in the case of M.E.Shivalinga Murthy v. Central Bureau of Investigation, Bengaluru2. The paragraph Nos.17 and 18 read thus: “17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala and discern the following principles:

17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.

17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.

17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.

17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the 2 (2020) 2 SCC 768 - 9 - NC: 2025:KHC-K:5780 CRL.RP No. 200153 of 2024 HC-KAR accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial".

17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion.

17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.

17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.

17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.

18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar²). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any, - 10 - NC: 2025:KHC-K:5780 CRL.RP No. 200153 of 2024 HC-KAR produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi).”

13. On careful reading of the dictum of the Hon'ble Supreme Court, it makes clear that, the defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 of Cr.P.C.

14. It is also necessary to refer the judgment of the Hon'ble Supreme Court in the case of STATE OF KARNATAKA v. CHANNAKESHAVA H.D AND ANOTHER3, held in paragraphs No.12 and 15, which read thus: “12. To sum up, this Court has held that in matters of corruption a preliminary enquiry although desirable, but is not mandatory. In a case where a superior officer, based on a detailed source report disclosing commission of a cognizable offence, passes an order registration of FIR, requirement of preliminary enquiry can be relaxed. 3 2025 SCC Online SC 753 - 11 - NC: 2025:KHC-K:5780 CRL.RP No. 200153 of 2024 HC-KAR

15. In view of the above, it is clear that preliminary enquiry was not mandated in the present case, considering detailed information was already there before the SP in the form of the source report referred above. We have also gone through the order passed by the SP, directing registration of FIR against respondent no. 1, which reflects that the SP had passed that order on the basis of material placed before him in the form of the source report.”

15. On careful reading of the dictum of the Hon’ble Supreme Court, it makes it clear that conducting preliminary enquiry is not mandatory.

16. On careful reading of all the dicta of the Hon'ble Supreme Court, it makes it clear that, the points urged by the counsel for the petitioner cannot be sustained. Moreover, there are prima facie materials brought by prosecution to proceed against the petitioner, hence, it is appropriate to reject the petition.

17. Accordingly, I proceed to pass the following: - 12 - NC: 2025:KHC-K:5780 CRL.RP No. 200153 of 2024 HC-KAR ORDER Criminal Revision Petition is rejected. Sd/- (S RACHAIAH) JUDGE JS/BSS List No.: 19 Sl No.: 3